Constitution of India, 1950 - Article 226 - Writ of Habeas Corpus - Live-in relationship has become rampant in our society and such living partners cannot be separated by the issue of a writ of habeas corpus provided they are major.

We cannot close our eyes to the fact that live-in relationship has become rampant in our society and such living partners cannot be separated by the issue of a writ of habeas corpus provided they are major. The Constitutional Court is bound to respect the unfettered right of a major to have live-in relationship even though the same may not be palatable to the orthodox section of the society. We are therefore constrained to dismiss this writ petition declaring that the detenue is free to live with the fourth respondent or marry him later on his attaining the marriageable age.

IN
THE HIGH COURT OF KERALA AT ERNAKULAM

V.
CHITAMBARESH & K.P.JYOTHINDRANATH, JJ.

WP(Crl)
No. 178 of 2018

Dated
this the 1st day of June, 2018

MUHAMMED
RIYAD Vs. STATE POLICE CHIEF,TRIVANDRUM

Pet's
Adv : SRI.T.H.ABDUL AZEEZ

Res's
Adv : SRI.T.MADHU

JUDGMENT

Chitambaresh,
J.

1. This writ petition has been filed to produce the body of
the detenue - Rifana Riyad - aged 19 years by her father under Article 226 of
the Constitution of India by the issue of a writ of habeas corpus or other
appropriate writ. The allegation is that the detenue is under the illegal
custody of the fourth respondent by name Hanize aged 18 years and that she should
be set at liberty at once. The detenue and the fourth respondent appeared
before us on receipt of notice in the writ petition and submitted that they are
intensely in love with each other since school days. The dates of birth of the detenue
and the fourth respondent are 20.9.1998 and 24.2.2000 respectively and
therefore both of them have become major as on date.

2. There were proceedings earlier too on the file of the Court
of the Judicial First Class Magistrate of Alappuzha on complaint filed by the
petitioner when the detenue was taken away from his home by the fourth
respondent. The detenue walked out of her parental home again to go with the
fourth respondent despite her custody being granted to the petitioner by an
interim order in this writ petition. It now transpires that the detenue and the
fourth respondent are having a live-in relationship practically living as
husband and wife though not legally wedded. The petitioner adds that he is
willing to let go the detenue with the fourth respondent after a legal and
valid marriage and not before under a live-in relationship. The short question
that arises for consideration now is as to whether the daughter of the petitioner
has been illegally detained by the fourth respondent warranting interdiction by
this Court.

3. The petitioner submits that the fourth respondent has not completed
21 years of age and hence a 'child' as defined under Section 2(a) of the
Prohibition of Child Marriage Act, 2006 ('the Act' for short). The petitioner
asserts that there can be no valid marriage between the detenue and the fourth
respondent and any offspring born to them can only be an illegitimate child in
the eye of law. We however notice that the detenue has attained puberty and has
the capacity to marry both under Section 251 of Mahomedan Law as well as the
provisions of the Act. But the marriage of the fourth respondent who has not
completed 21 years of age is voidable at his instance under Section 3 of the
Act on the ground that he was a 'child' at the time of marriage.

4. It transpires that the detenue is living with the fourth respondent
out of her own volition and she being a major has a right to live wherever she
wants to as is permissible or to move as per her choice. The detenue has every
right to live with the fourth respondent even outside her wedlock since live-in
relationship has been statutorily recognized by the Legislature itself. The
Supreme Court in Nandakumar v. State of Kerala, 2018 (2) KLT 783 (SC) had
occasion to observe as follows:

“For
our purposes, it is sufficient to note that both appellant No.1 and Thushara
are major. Even if they were not competent to enter into wedlock (which
position itself is disputed), they have right to live together even outside
wedlock. It would not be out of place to mention that 'live-in relationship' is
now recognized by the Legislature itself which has found its place under the provisions
of the Protection of Women from Domestic Violence Act, 2005.”

5. The Supreme
Court in the aforesaid decision quoted with approval the following passage from
Shafin Jahan v. Asokan K.M. and others, 2018 (2) KLT 571 (SC) popularly known
as Hadiya's case:

“It needs no special emphasis to state that attaining the age
of majority in an individual's life has its own significance. She/He is
entitled to make her/his choice. The courts cannot, as long as the choice
remains, assume the role of parens
patriae. The daughter is entitled to enjoy her
freedom as the law permits and the court should not assume the role of a super
guardian being moved by any kind of sentiment of the mother or the egotism of
the father. We say so without any reservation.”

The dictum in Beljibhai
Bhanabhai Prajapati v. State of Gujarat and others, AIR 2016 Guj 170 that the
Act has a bearing on deciding the custody of the detenue is therefore no longer
good law.

6. We cannot close our eyes to the fact that live-in
relationship has become rampant in our society and such living partners cannot
be separated by the issue of a writ of habeas corpus provided they are major.
The Constitutional Court is bound to respect the unfettered right of a major to
have live-in relationship even though the same may not be palatable to the
orthodox section of the society. We are therefore constrained to dismiss this
writ petition declaring that the detenue is free to live with the fourth
respondent or marry him later on his attaining the marriageable age.